TMI Blog2019 (2) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... ining areas is more appropriately classifiable under Section 65(105) (zzp) i.e. GTA service and it is not involved in the service in relation to the “mining of mineral”, oil or gas” as provided by Section 65(105) (zzzy) of the Act. Appeal allowed - decided in favor of appellant. - ST/53209/2015-CU(DB) - Final Order No.50101/2019 - Dated:- 17-1-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri B.L. Narsimhan/Shri Rachit Jain, Advocate for the appellant. Shri Vivek Pandey, DR for the respondent ORDER PER ANIL CHOUDHARY: The issue in this appeal is whether the appellants were engaged in the activity of mining and transportation of goods, under the fact that the appellant have paid tax under the category of Mining Service for the Mining Activity and have paid tax on the transportation activity under the GTA and whether the show cause notice issued for extended period of limitation is maintainable. 2. The brief facts are that the appellant is engaged in providing services for mining, transportation of the mined goods from mining sites to other places as also services for transportation of other goods to var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipals of the appellant), wherein it was observed that there is short payment of service tax on transportation activities and accordingly, the appellant was required to discharge the liability of service tax. 9. The appellant responded to the said letter vide its letter dated 23.11.2010 and 08.12.2010 (page158-161 of Appeal Memo) and stated that it was responsible for paying service tax on Mining Services rendered to M/s. Dalla Cement Factory. Further, the appellant submitted that it has been paying service tax on such services; however, the balance of services being Goods Transport Services, called for liability to pay service tax on the part of the service recipient and therefore, the appellant was not required to pay service tax on such services. 10. The appellant did not receive any communication from the Department till 2013, when it received letters from the Superintendent, Service Tax Range-I, Jaipur, wherein information towards the services rendered by it to the principals along with respective contracts were sought, which were duly provided by the appellant. 11. This communication culminated in issuance of show cause notice C.No.V(H)Adj.-1/ST/415/2013 dated 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in many of the contracts, there is no work at all for any kind of mining in the scope of the appellant. As such, the activity wise bifurcation of the disputed receipts on which demand is confirmed in the impugned order-in-original is also enclosed and marked as Annexure-J to the Appeal Memo. (A.5.) It is further submitted that for the period upto 30.06.2012, Rule 2 (1)(d)(v) of the Service Tax Rules, 1994, inter alia, provided that if the service recipient is a registered company then such service recipient is specified as the person liable to pay service tax on the charges towards transportation services provided by a Goods Transport Agency . Similar provision is there for the period from 01.07.2012 onwards under Rule 2(1)(d)(i)(B) of the Service Tax Rules, 1994. (A.6) The appellant submits that on issues pertaining to levy of service tax on Goods Transport Agency , the department has issued a clarification from F.No.341/18/2004-TRU(Pt.) dated 17.12.2004 wherein it was clarified that if service tax due on transportation of consignment is payable by a person liable to pay service tax, service tax should not be charged for the same amount from any other person, to avo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin mining area or upto plant or designated site were issued. It is submitted that the transit slips issued by the appellant fulfils the criteria of a consignment note and therefore, the appellant has fulfilled the requirement of Rule 4 B of the Service Tax Rules. (A.13). The Adjudicating Authority while considering the main activity to be not that of transportation but of mining, has also referred to Section 65 A of the Finance Act, 1994 which deals with classification of composite services and has held that the contracts undertaken by the Appellant are comprehensive one for mining. (A.14). It is submitted that the services of mining and transportation are two separate and independent activities. Therefore, Section 65 A is not invokable in the present case. It is submitted that once the contract itself identifies two separate services or activities to be undertaken by the service provider and provides individual rates for such activities, the activities are classifiable under their respective heads and not as a composite service even if the services are to be performed under a common agreement or instrument. (A.15) In this regard, the appellant relies on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licability of service tax on GTA services provided by the appellant, which was duly responded by the appellant vide their letters dated 23.11.2010 and 08.12.2010 clarifying that the liability to pay service tax on the transportation services rendered by them lies with the service recipient. Further, a show cause notice dated 22.10.2013 was issued to M/s. Aditya Aluminium (Hindalco) demanding service tax on the services provided by the appellant during the period 2009-2010 to 2012-2013. As such, when an investigation was conducted by the department in 2010 and on the basis of such investigation was conducted by the department in 2010 and n the basis of such investigation conducted during 2010 a show cause notice was already issued on 22.10.2013 to the service recipient by closing the related query; proceedings cannot again be initiated against the appellant vide show cause notice dated 13.10.2014 by invoking extended period of limitation. Therefore, the demand is barred by limitation. (B.4) Without prejudice, it is submitted that no positive action has been cited by the Department to establish that appellant suppressed any material facts. The appellant was under a bona fide be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the activity undertaken by Singh Transporters i.e. transportation of coal from pit heads to the railway sidings within the mining areas is more appropriately classifiable under Section 65(105) (zzp) i.e. GTA service and it is not involved in the service in relation to the mining of mineral , oil or gas as provided by Section 65(105) (zzzy) of the Act. 15. Further, so far the argument of the Revenue is concerned that a contract under which all the activity of mining and transportation is undertaken service, the said service is a composite service and the essential character being that of mining classification should have been made under the head classification mining services and accordingly there is no fault on the order of the learned Commissioner, we find that the services are separately defined in the contract and further separate bills have been raised for the mining activity and for the transportation activity. Further we have already noted herein above that appellant have transported more mineral than what they have mined. 16. In this view of the matter, we hold that the concept of composite service is not applicable and our findings are also fortified by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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